General Terms and Conditions of Protectoplus Lager- und Umwelttechnik GmbH for Delivery and Installation
§ 1 - General
Our terms and conditions of sale shall apply exclusively. Any deviating terms and conditions of the customer shall only be binding on us if and to the extent that we have expressly agreed to them in writing, waiving our terms and conditions. In particular, our silence with regard to such deviating terms and conditions shall not be deemed to constitute acceptance or consent. Such deviating conditions or counter-confirmations of the customer are hereby expressly rejected. Our terms and conditions of sale shall only apply to companies within the meaning of § 310 para. 1 BGB (German Civil Code).
§ 2 - Subject matter of the contract
(1) The subject matter of the contract is the delivery of products from the current delivery programme and custom-made products especially for the customer. If agreed, the assembly can also be taken over.
(2) The scope of delivery is based on our written confirmation. A reference to DIN regulations is a description of performance and not a guarantee of properties. Minor deviations from the values stated in the performance specification are to be accepted. Design changes which are necessary in the interest of proper and expedient fulfilment of the order shall be made without special notification. The same applies to technical improvements.
(3) All offers are subject to change and non-binding. Orders can be placed in writing, verbally, by telephone or via our Internet online shop. If the order is to be qualified as an offer according to § 145 BGB (German Civil Code), we can accept it within 2 weeks by sending the goods or by an order confirmation. Order confirmations must be in writing. Oral offers and any oral promises made by representatives, salesmen or employees must be confirmed by us in writing in order to be valid.
(4) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents which are designated as "confidential". The customer must obtain our express written consent before passing them on to third parties.
§ 3 - Prices
(1) Domestic orders: The minimum order value is EUR 25,- (excl. VAT). If the minimum order value is not reached, a surcharge will be added until the minimum order value is reached. Foreign orders: The minimum order value is EUR 50 (excl. VAT). If the minimum order value is not reached, a surcharge will be added until the minimum order value is reached.
(2) Our prices are net prices plus the statutory value added tax excluding freight and packaging. Packaging will be invoiced separately at the usual prices.
(3) We reserve the right to change our prices accordingly if cost reductions or cost increases occur after the conclusion of the contract, in particular due to collective wage agreements or changes in the price of materials. We will provide evidence of these to the customer on request.
(4) If a service not provided for in the contract is required and if an increased effort is necessary for other reasons for which we are not responsible - in particular due to the nature of the preliminary service of another company - we shall be entitled to an appropriate remuneration due to the additional service, even if we did not or could not notify the customer of this claim before the start of the service.
(5) The deduction of a cash discount requires a special written agreement.
(6) Unless otherwise stated in the order confirmation, the purchase price shall be due for payment without deduction immediately upon receipt of the invoice. The statutory regulations concerning the consequences of default in payment shall apply. Further regulations regarding the terms of payment can be found in § 7 Payments
§ 4 - Delivery period
(1) Delivery periods begin with our order confirmation, but not before all details of the execution have been clarified and all other prerequisites to be fulfilled by the customer have been met; the same applies to delivery dates. Stated delivery periods are only approximate unless they have been agreed as binding. Deliveries before the expiry of the delivery period and partial deliveries are permissible. The date of delivery shall be the date of notification of readiness for dispatch, otherwise the date of dispatch or, in the case of assembly, the date of commencement of installation.
(2) Agreed delivery periods and dates shall be extended or postponed by the period by which the customer is in arrears with his obligations, without prejudice to our rights arising from default on the part of the customer. If we are in default, the customer may set a reasonable grace period and withdraw from the contract after its expiry insofar as performance is of no interest to him.
(3) Events of force majeure shall entitle us to postpone delivery for the duration of the hindrance and a reasonable start-up period or to withdraw from the contract in whole or in part on account of the part not yet fulfilled. Force majeure shall be deemed to include strikes, lockouts or unforeseen circumstances, e.g. operational disruptions, rejects and post-treatment, which make it impossible for us to deliver on time despite reasonable efforts; we shall be required to provide evidence of this. This shall also apply if the aforementioned hindrances occur during a delay or at a sub-supplier.
(4) The customer may request us in writing to declare within two weeks whether we wish to withdraw from the contract or deliver within a reasonable period of grace. If we do not make a declaration, the orderer may withdraw from the unfulfilled part of the contract.
5 - Transfer of risk, acceptance
(1) In the case of delivery of products, the risk of deterioration or loss shall pass to the customer as soon as the products leave our works. This shall also apply in the event that we transport the products using our own means of transport, insofar as the deterioration or loss is accidental. If the departure of the products from the factory is delayed or made impossible through no fault of our own, the risk shall pass to the customer at the time of notification of readiness for dispatch. If the customer so desires, we shall cover the delivery by transport insurance; the customer shall bear the costs incurred in this respect.
(2) In the case of custom-made products, the scope and conditions of acceptance shall be determined by the time the contract is concluded. Acceptance shall be carried out at the customer's expense immediately after reported readiness for acceptance at the supplying plant or after agreed assembly. If the acceptance is not carried out, not carried out in time or not carried out completely, we are entitled to dispatch the goods or to store them at the expense and risk of the customer. The goods shall then be deemed to have been accepted. Minor defects do not entitle the customer to refuse acceptance. The refusal of acceptance by the customer shall not prevent our claims from becoming due.
6 - Obligations of the purchaser
(1) The purchaser shall provide the services incumbent upon him in a timely and proper manner, in particular also to check our construction plans immediately upon receipt and to return them to us with his note of agreement or his requests for changes. Insofar as the customer does not properly or punctually fulfil his obligations to cooperate, e.g. provision of a building permit or all other necessary approvals, we shall be entitled to refuse performance and shall be released from the warranty. Further rights remain unaffected; we reserve the right to assert the additional costs incurred by us as a result.
(2) In the case of free delivery to the place of use, the customer must ensure that there are access roads which are passable for heavy vehicles. Vehicles are to be unloaded immediately, at the latest within one hour. Significant overruns of the unloading time as well as significant waiting times occurring before or during unloading shall be remunerated to us separately.
(3) If we have undertaken installation work, the construction site including the access road must be maintained for the duration of the installation work in a condition that allows the installation to be carried out smoothly. This also applies in particular with regard to the load-bearing capacity of the areas to be driven over and the crane stands. All preliminary work to be carried out by the customer must be accurate to size. Any lifting equipment required for assembly, such as forklift trucks, cranes, etc., shall be provided by the customer free of charge. Waiting times and additional expenses, in particular additional services which have to be rendered in order to remove installation obstacles, shall be remunerated separately, even if we have not given notice of the claim prior to commencement of the service. The client must precisely indicate the course of supply lines (electricity, gas, telephone, water, etc.) and disposal lines. The same applies to special features of the installation area, e.g. the condition of the subsoil. In the event of incorrect or incomplete information, the customer shall be liable for all resulting damage.
(4) All connection work is to be carried out by the customer. Electricity and water supply shall be provided by the customer free of charge until acceptance. Sectional scaffolding, axes and metre plans as well as officially required surveying or measuring work shall also be provided by the customer unless otherwise agreed.
(5) Floors, ducts, etc. must be such that they can bear the loads of the truck-mounted crane, including the prefabricated parts, and must be appropriately supported or filled if necessary.
(6) The purchaser must keep a lockable room for our material and tools permanently available free of charge. In the case of welding, soldering and similar work, he must take the necessary safety measures (fire guards, fire extinguishing materials, etc.).
(7) A suitable recreation room must be made available to our personnel at all times and free of charge.
(8) If the Buyer declares prior to production of the ordered goods that he does not wish to accept them, he shall pay 40% of the contract value as compensation for lost profit and costs incurred.
7 - Payments
(1) Payments shall be made to us free of charge.
(2) For the delivery of products from the current delivery program, payments are generally due immediately upon delivery. If the contract also includes installation services, the payments relating to the installation services shall generally be due upon completion of the installation services.
(3) Unless otherwise agreed, payments for custom-made products shall be due without deduction as follows: 1/3 upon placement of the order, 1/3 upon completion of the parts in the factory (readiness for shipment), 1/3 upon delivery or assembly.
(4) The statutory value added tax is due with each payment.
(5) Offsetting against our payment claims shall be excluded unless the counterclaim put forward for offsetting is recognised by us or has been legally established. The exercise of a right of retention due to any counterclaims is only permissible insofar as the counterclaims are based on the same contractual relationship; the right of retention may only be exercised up to the amount corresponding to the value of the counterclaim or the anticipated costs of remedying the defect.
8 - Retention of title
(1) We shall retain title to the object of sale until receipt of all payments arising from the delivery contract. In the event of conduct by the customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. The taking back of the object of sale by us shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realise it; the proceeds of realisation shall be set off against the customer's liabilities - less reasonable realisation costs.
(2) The customer is obliged to treat the object of sale with care; in particular, he is obliged to insure it adequately at his own expense against fire, water and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
(3) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain entitled to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(5) The processing or transformation of the object of sale by the customer shall always be carried out on our behalf. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered subject to reservation of title.
(6) If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
(7) The customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a property.
(8) We undertake to release the securities to which we are entitled at the customer's request insofar as the realisable value of our securities exceeds the claim to be secured by more than 10%; the selection of the securities to be released is incumbent upon us.
9 - Liability for defects
(1) Claims for defects on the part of the customer presuppose that the customer has duly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
(2) Insofar as the purchased item is defective, we shall be entitled, at our discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect, we shall bear the expenses only up to the amount of the purchase price.
(3) If the supplementary performance fails, the customer shall be entitled, at his option, to demand withdrawal from the contract or a reduction in the purchase price. If the usability for the purpose stipulated in the contract is not significantly impaired by the defect, the customer shall only be entitled to a reduction.
(4) We shall be liable in accordance with the statutory provisions insofar as the customer asserts claims for damages which are based on intent or gross negligence, including intent and gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(7) Unless otherwise stipulated above, liability is excluded.
(8) The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
(9) We provide a warranty for the execution of construction work in accordance with VOB Part B § 13 in the currently valid version, with the following proviso:
(a) We shall not bear the costs of unauthorised rectification work, work which the customer carries out or has carried out by third parties without our written consent. If, as a result of such work, the expenditure required for rectification increases, the customer shall reimburse the additional costs.
b) Natural discolouration or minor colour markings of the components and lime efflorescence on visible surfaces are natural and do not justify any warranty claims. We shall not be liable for the fact that buildings or parts of buildings are suitable for uses other than those intended when the contract was concluded.
10 - Joint and several liability
(1) Any further liability for damages than provided for in § 9 is excluded - irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for damage to property pursuant to § 823 BGB.
(2) The limitation according to para. 1 shall also apply insofar as the customer demands compensation for useless expenditure instead of a claim for compensation for damage instead of performance.
(3) As far as legally permissible, the liability for insurable damages is limited in reason and amount to damages which are covered by an existing legal liability insurance.
(4) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
11 - Place of performance and jurisdiction
(1) The place of performance for payments shall be Rendsburg, for all other obligations the place of the supplying plant.
(2) The place of jurisdiction is Rendsburg, also for actions in bill of exchange and cheque proceedings. We are entitled to sue the customer at his general place of jurisdiction.
12 - Applicable law
The law of the Federal Republic of Germany shall apply exclusively to all legal disputes between the customer and us, to the exclusion of the Hague Convention on the International Sale of Goods.
§ 13 - Severability clause
Should individual provisions of this contract be or become invalid in whole or in part, or should there be a loophole in the contract, this shall not affect the validity of the remaining provisions. In place of the ineffective provision or to fill the gap, an appropriate provision shall be made which, as far as legally possible, comes as close as possible to what the contracting parties intended or would have intended according to the sense and purpose of this contract if they had considered the point.